Implementing the ACHPR’s ruling on the Endorois case

ESCR-Net has been involved in the last years in the implementation process of the 2010 ruling of the African Commission on Human and People’s Rights (ACHPR) regarding the Endorois case. It has created a space for its members not only to identify gaps for implementation but also to identify the expertise and the procedures necessary to fill those gaps. In the last months, implementation of the ACHPR’s ruling on the Endorois case has moved forward through some relevant steps.

On August 2014 ESCR-Net’s Strategic Litigation Working Group (SLWG), composed of 66 Members from 28 countries, issued a letter of support to MRG-EWC’s request, concerning the application of Rule 112(8) of the ACHPR’s Rules of Procedures to the Endorois case (support letter attached here). This rule allows the Commission to draw the attention of the African Union (AU) Sub-Committee of the Permanent Representatives Committee and the Executive Council toward situations of non-compliance with the Commission’s rulings, with the aim of putting greater pressure on states to comply with Commission recommendations. By putting this new implementation framework into practice, the African Commission can provide the human rights field with an innovative and much needed tool of enforcement. Given the high profile nature of the Endorois Case, and its importance to indigenous rights in the region more generally, we consider that this case provides an excellent opportunity for the Commission to make use of Rule 112(8), thus demonstrating its commitment to and improving the likelihood of implementation of the ruling. This could be a great opportunity to strengthen Rule 112’s implementation mechanism and try to obtain more concrete commitments from the African Union and the Kenyan government regarding implementation.

A second step towards implementation came, at first glance, on September 2014, when the Kenyan government created a task force for the implementation of the ACHPR’s ruling on the Endorois case (see the government Notice here). The task force, however, gives rise to some concern, as identified by ESCR-Net member organizations involved in the implementation of the recommendations: (i) the task force has no requirement of consultation with the Endorois Welfare Council or any Endorois representative, nor is there Endorois representation on the task force itself; and (ii) it has been created mainly to ‘study the Decision’, ‘provide guidance on the political, security and economic implications of the Decision’ and to ‘examine the potential environmental impacts on Lake Bogoria and the surrounding area because of the implementation’.  Such provisions are in contradiction with the ACHPR ruling. First, the ACHPR established in 2010 that the Kenyan government should “engage in dialogue with the Complainants for the effective implementation of [the Commission’s] recommendations”. (In July 2014 the UNESCO World Heritage Committee gave support to the establishment of a dialogue between the government and the Endorois, by issuing a resolution which also required consultation with the Endorois on management of the land.) Second, the Commission recommendations were issued almost 5 years ago and the government should now be adopting concrete measures of implementation, including land demarcation, land registration, budget allocation for full compensation of material and immaterial losses, and payment of royalties. Actually, in 2013, the ACHPR issued a new resolution, ACHPR/Res.257 (LIV), reinstating the need for the State to demonstrate tangible progress on implementation.

Although it represents concerns, the establishment of the task force could produce an opportunity to move the implementation process forward. The plight of the Endorois started in the 1970s, when the government started displacing the community from Lake Bogoria and surrounding areas, in order to build a game reserve. Community members settled in sixteen different locations in search for alternative ways of living. The 2010 ACHPR ruling are a great achievement, but the Endorois will only obtain justice with the implementation of the Commission’s ruling.